Mr I Howat (in person) For the v Mr A Dark (solicitor) — 2022

This was a preliminary hearing on the respondent's application to strike out the claimant's claims, or alternatively to order a deposit. The claimant had brought unfair dismissal and wrongful dismissal/breach of contract claims after being dismissed on 28 April 2021 following a verbal altercation on 20 April 2021. He accepted that he said, 'I’d like to stab you', but disputed that he threatened to stab anyone or waved a knife. He also said that Tom Keedwell, who was involved in the incident and was a family member of the respondent's owners, was treated differently and received only a written warning.

The tribunal applied rule 37 and rule 39 of the Employment Tribunal Rules, and the unfair dismissal authorities it cited, including s.98(4) ERA 1996, BHS v Burchell and the band of reasonable responses approach. It noted that there was a serious factual issue about what happened in the altercation and, in particular, about the rationale for treating the claimant and Mr Keedwell differently. The judge held that this was not a case suitable for strike out because the claimant's case had to be taken at its highest and the disputed factual issues could not properly be resolved by a mini-trial.

The tribunal also declined to make a deposit order. It found there was a factual conflict requiring determination at a full hearing, and it took account of the claimant's limited finances when deciding that a deposit would not be in the interests of justice. The respondent's applications to strike out the claim, or for a deposit order in the alternative, were dismissed. The judgment did not finally decide liability on either the unfair dismissal or the notice claim.